Neal v. Shinn

• Decision Date: 04 June 1887
• Citation: 4 S.W. 771
• Parties: NEAL and others <I>v.</I> SHINN and others.
• Court: Arkansas Supreme Court

4 S.W. 771

NEAL and othersv.

SHINN and others.

Supreme Court of Arkansas.

June 4, 1887.

Appeal from circuit court, Pope county.

McKennon & McGill, for appellants. Wilson & Granger and G. W. Sheim, for appellees.

COCKRILL, C. J.

The county court of Pope county, at a special term, on twentieth July, 1886, upon proper petition, ordered an election to be held at general election, September 5, 1886, submitting the question (1) of removal of county-seat from Dover; (2) removal to Russellville; (3) removal to Atkins. At such election a majority of the qualified voters of said county voted in favor of a change from Dover, but there was not a majority for Russellville or Atkins. At the October term, 1886, of said court, T. M. Neal and others, after due notice, filed their petition contesting said election, and the court, upon hearing, sustained the contest, and set aside the election, and J. L. Shinn et al. and E. A. Darr et al., as contestees, appealed to the Pope circuit court. The time for holding the Pope circuit court, as fixed by law, was the first Monday—the first day—of November, 1886; but the court was not opened until the third day, (Wednesday,) when the circuit judge appeared, and proceeded to open and hold the court. On the fifth day of said month, Hon. M. L. Davis was elected special judge, and on the twelfth he proceeded to try the contest, upon the amended petition of contestants and demurrer of contestees thereto, and sustained the demurrer, and so rendered judgment; and thereupon ordered an election to be held on the nineteenth day of March, 1887. Such an election was then held, and a majority of the voters of said county voted to locate the county-seat at Russellville. The petition is for certiorari, and to quash the judgment of the circuit court, and its order for holding the election.

The question presented upon the threshold, in the consideration of this case, goes to the validity of the term of the circuit court at which the proceedings were had. The term as fixed by statute began on the first Monday in November, but the court was not opened until the Wednesday following, when the judge of the circuit appeared, opened, and held the term of court at which the proceedings complained of were had. If the court was held at a time not authorized by law, its proceedings are void. Brumley v. State, 20 Ark. 77; State v. Williams, 48 Ark. 227, 2 S. W. Rep. 843. The decision of this case may therefore reach beyond the single question of the election to change the location of the county-seat. It involves the legality of all the judgments rendered and proceedings had at the November term, 1886, of the Pope circuit court. The legislature undertook by act of February 21st of the present year to validate the proceedings of this term, but whether the act can have the desired effect, aside from other considerations, depends upon the solution of the question whether the legislature can authorize the judge to appear and open the court on the third day of the term, after a failure of the practicing attorneys to preserve the term for him by the election of a special judge to preside in his absence, as provided by section 21, art. 7, of the constitution. If the legislature is without power to authorize the judge to appear on the third day, and then for the first time cause the court to be opened, it is apparent they could not breathe judicial life into his acts done at such a time by a retroactive act, because that would be doing by indirection that which could not be done directly. If they are not prohibited from empowering the judge to appear on the third day, and open court, notwithstanding no special judge had been previously chosen, the curative act was unnecessary, because the provision of the Revised Statutes which authorized the judge to appear and open court as late as the third day would then stand intact, unaffected by the constitutional provision, and would afford legislative authority for the action of the judge in opening court at the time disclosed by this record. The construction of the constitutional provision referred to must therefore furnish the solution of the question. If it contains no limitation upon its exercise, the power resides in the legislature to authorize the judge to open court at any time within the period fixed for the term, and in that event the statute referred to is not inconsistent with any provision of the constitution of 1868 or 1874, and has not been abrogated by either. Both instruments continue in force all previous laws not inconsistent with their provisions. Section 1, Sched. Const. 1874; article 15, § 16, Const. 1868.

The provision is as follows: "Whenever the office of judge of the circuit court is vacant at the commencement of a term of such court, or the judge of said court shall fail to attend, the regular practicing attorneys in attendance on said court may meet at 10 o'clock A. M. on the second day of the term, and elect a judge to preside at such court, or until the regular judge shall appear."

It is not here affirmed, in terms, that the general assembly shall not authorize the court to be opened by the regular judge, after 10 o'clock of the second day, in the event no special judge is chosen. Negative words are not necessary, however, to create a prohibition. Every positive direction contains an implication of anything contrary to it, and affirmative words may imply a negative of what is not affirmed; but such an implication is not as readily drawn in the construction of a state constitution as it is in dealing with a statute. Vance v. Austell, 45 Ark. 400. The reason is "the constitution of a state is not a grant of enumerated powers. * * * We look to it not so much...